Nigerian judiciary has unwittingly been politicised — Sebastine Hon, SAN

Mr. Sebastine Hon, SAN, a member of the Legal Practitioners Privileges Committee, LPPC, in this interview, shares his view on several legal and political issues confronting the country. He suggested amongst other things, how the judiciary can be fully secured and insulated from manipulations by politicians.

Recent events in the country have created an impression about the state of the Nigerian judiciary. Should Nigerians be worried?

The way and manner those events happened and are still happening should worry every right-thinking Nigerian. Many are worried that the hallowed principles of separation of powers established by the Constitution itself, is being infringed upon. Many are also worried that even though Judicial officers enjoy partial immunity from prosecution – in that the National Judicial Council, NJC, must first indict a Judicial Officer before he will either be removed from office or sanctioned in any other way, this immunity has been shattered under one fell swoop.

Many Nigerians are also worried that democracy itself is under a savage and vicious attack, since the Judiciary, which is the last hope of the common man, is under siege. But not just Nigerians are worried; the international community is also deeply worried. I was just reading the press statement by the UN Special Rapporteur on Judicial independence, Garcia-Saya, which condemned in no mistaken terms, the suspension of the Chief Justice of Nigeria,CJN, Justice Walter Onnoghen, without the input of the NJC. Whether we like it or not, this particular saga is now on world stage; hence all stakeholders, including the NJC, must be very circumspective and objective in handling it. If not well handled, the consequences might just be too weighty for the country.

I am most worried because the judiciary has unwittingly been politicised – along ethnic, religious and even partisan divides. May God Almighty help us to come out of this soonest and unscathed. And may the NJC never buckle under undue pressure and refuse to toe the line of truth and objectivity.

If the judiciary is destroyed, the NJC will itself cease to exist; Nigeria will cease to exist; and our collective destiny will be destroyed.

The suspension of Justice Onnoghen as CJN raised certain issues about how and how not to sack a CJN. Do you think there is a need to rethink our constitution particularly on this issue?

As stated above, even the UN knows that no one wakes one day to remove a sitting Judicial Officer without the input of the Judicial Council of that country. The UN Rapporteur, as shown above, sounded out this clearly in his public statement. This is global best practice, to secure the Judiciary, since it does not bear arms or have coercive powers. In Nigeria, the CJN for instance cannot be removed except upon an address supported by 2/3 majority of the Senate. That is clearly provided for in section 292(1)(a) of the 1999 Constitution as amended. In spite of this, I hear very puerile arguments, even from lawyers, that since the President has power to appoint the CJN, he also has power to suspend him from office. Section 11(1)(b) of the Interpretation Act is then cited in support of this curious postulation.

We need to deeply interrogate this issue. Section 231(1) of the Constitution mandates the President of Nigeria to appoint the CJN, but upon the recommendation of the NJC and subject to confirmation by the Senate. There are, therefore, two qualifications or pre-conditions to this appointment: the recommendation by the NJC and the confirmation by the Senate. This procedure distinguishes the power of the President to appoint his domestic or personal staff. Now, section 11(1) of the Interpretation Act has paragraph (c), which limits the power of the appointing authority to suspend, by insisting that any such suspension from office must be exercisable subject to the limitations and conditions applicable to the power to appoint. Since the President cannot wake up and appoint any person as the CJN without the recommendation of the NJC, he cannot also suspend the CJN without the recommendation of the NJC.

Can our judiciary really be independent in the true sense of it?

The issue of the Judiciary being 100 per cent independent is a myth. First of all, members of the Bench have their individual idiosyncrasies, dispositions, ideologies, interests and cleavages. This is the first limitation on the theory of the independence of the judiciary. No one can do away with these varying and personal limitations on the effective discharge of judicial duties.

Secondly, the structure of any given legal system affects in varying degrees the independence of the judiciary. For instance, I delivered a paper on the independence of the judiciary in 2009, wherein I raised the issue of State Governors funding the capital expenditure of State High Courts, Sharia Courts of Appeal and Customary Courts of Appeal, which are established by the Constitution as federal courts for the states. Because of paucity of funds and for political reasons, these courts, as long as they draw from the state purses instead of the NJC, are at times starved of funds until they either stop delivering decisions that injure the interests of the state governments, or until they remain ‘loyal’ to such interests.

A proper interpretation of the Constitution would show that it is the NJC that is supposed to fund the capital projects of these courts and not the various state governments that merely provide land to house them. But this is not the situation, hence, whether we like it or not, those courts are one way or the other compromised in the discharge of their duties. Until some of these problems are critically looked into, the judiciary cannot be truly independent.

Appointment of judges in state courts is still largely influenced by politicians. What is the danger of this and how can it be curtailed?

I can only agree with you to some extent. To be fair to the NJC, the conditions for appointment of judges to the various courts established for the federation keep improving over time. Under the 2014 Revised Guidelines for the appointment of Judicial Officers, it is the State Judicial Service Commission, headed by the Chief Judge who is its Chairman that commences the procedure, by writing to the state governor that a named number of judges is required to be appointed. Looking at his financial standing, the state governor either gives consent or withholds it. But this is where I have my hunch and disagreement. Even though it is the NJC that ultimately recommends to the governor for appointment of any such judge, if the governor had initially given his consent that more judges be appointed for his state, I still maintain that the NJC should henceforth start funding the capital expenditure of federal courts established for the states – to completely remove the state governors from the chain. Having said that, however, I must say that both the Nigerian Bar Association, NBA and security agents vet appointees and even write reports before any person is appointed as a judge. Also, the appointee must submit a certain number of cases he or she has handled over a named period of time.

Then, more recently, appointees are made to undergo some written tests, to gauge their knowledge of the law. My conclusion, therefore, is that even though there is room for improvement, it is not correct to say that appointments to the Bench are basically political. No, they are not. What I know is that geographical spread, also called federal character, is reflected largely but not very strictly as to sacrifice merit in such appointments. But I still call on the NJC to assume its constitutional powers of collecting budgetary proposals from the various State High Courts, etc, collating and submitting same to the National Assembly and dispensing such moneys as are appropriated by the National Assembly straight to the heads of such courts. With this, the independence of these courts will be fully secured and insulated from manipulation.

The Nigerian Bar Association recently made a not-too-successful intervention on the FGN/ CJN crisis. Is this an indication that the Bar has lost its glory?

As I told you, Nigeria has been consciously or unconsciously balkanised along ethnic, religious and political compartments. Yes, we have always known our differences; yes, we have always had our different political leanings and ideologies. But the recent events have polarised us the more. The partial success of the NBA boycott order was due mainly to these factors. Again, the NBA has grown in number; and central control in such situations becomes problematic.

But I should think the biggest contributory factor was the fact that the NBA had internal crisis, owing to dissatisfaction of a section of the Bar with the outcome of the last NBA national elections.

Some of the aggrieved members, I can authoritatively say, instigated the boycott.

To directly answer your question, I would not say yet that the Bar has lost its glory; rather, I will say that once the NBA looks inwards and purges itself of its internal implosive tendencies, it will bounce back as a strong voice in the Nigerian public space.

As Nigerians go to the polls, what is the permissible level of intervention that foreign countries can exercise on our internal affair especially our electoral process?

The issue of direct foreign intervention in the internal affairs of any sovereign nation, and particularly in its election process, has always been a very contentious issue in international politics. For instance, the issue of alleged Russian intervention in the USA 2016 presidential election is still generating heated arguments and contentions. More recently, the happenings in Venezuela, indicate that two opposing ‘Presidents’ have been recognised by different superpowers. Before his death, the late Libyan leader, Muammar Gaddafi, was accused of interfering in the French presidential election. In 2017, Turkish President, Recep Erdogan, publicly asked Turkish citizens in Germany to vote against German Chancellor, Angela Merkel. Back home in Nigeria, there is strong evidence that the Obama-led Government of the USA supported the All Progressives Congress, APC in the 2015 elections.

This cannot be denied or disputed; because we were all here when APC chieftains, led by its then presidential candidate, Muhammadu Buhari, travelled to Washington to solicit for the latter’s support in the ensuing electoral contest. The US Secretary of State then, John Forbes Kerry, followed up with a controversial visit to some northern states; and the rest, they say, is history. Even in this current exercise, President Buhari, while recently campaigning in Kano, had some public officers from Niger publicly displaying their support for him on Nigerian soil. I personally was, therefore, surprised when the Governor of Kaduna State, El-rufai, appeared on national television and boasted that foreigners who come into Nigeria to interfere in our elections will go back in body bags. This is the height of arrogance and perfidy, especially when it is the Government of Nigeria that has invited foreign observers, a practice that has always been with us. I read just yesterday that the US Government has elevated Mr. El- rufai to “a person of interest.” This is perhaps the first time the US Government will be putting a State Governor under its special watchlist.

Having said that, I know that Article 2 of the UN Charter prohibits countries from intervening in matters that are within the domestic jurisdiction of other countries. In 1965, the UN even expanded, through its Resolution 2131 (XX), the ban on foreign intervention, ‘for any reason whatsoever.’ However, if internal political disagreements trigger crises of unimaginable levels, unilateral military actions, sanctions, etc are deployed. We have seen too many examples of regime change engineered and carried out by countries on other countries. We cannot forget the role Nigeria played in ECOMOG, where Samuel Doe was killed and Charles Taylor removed from office; the role played by the US in the removal of the then Panamanian strongman, Manuel Noriega; the role of the US-led coalition in removing Saddam Hussein, Gaddafi, etc.

I have stated both the position of international law and the practical situation, including the role even Nigeria has been playing in effecting regime change globally. Nigeria cannot, I insist, be involved in such and at the same time be decrying it. He who comes to equity must come with clean hands. Also, even though prohibited under international law, direct foreign intervention in the political affairs of other countries has come to stay with us as a global community. Nigeria cannot afford to square up to the superpowers, I must honestly advise.

There is no way the international community will sit and watch Nigeria slide into an avoidable political or ethno-religious conflict, in view of our near-dominating position in Africa. Our leaders should listen to this, if they have ears. I do not doubt that they have the physical ears; but the ability to hear with the ear of the mind is what I am talking about here. Let us slow down on rhetoric and grandstanding; because my interpretation of the situation is that foreign superpowers do not want to sit and watch rape of political justice in Nigeria. Again, I strongly counsel our leaders to listen to this and allow free and fair elections in the near-coming days. A stitch in time saves nine.